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January 19, 2012

An Analysis of the Vacancies within the Federal Judiciary

Adam Brown | Bloomberg Law In his December 31, 2010, Year-End Report on the Federal Judiciary, Chief Justice of the U.S. Supreme Court John G. Roberts warned that some districts and judges were being "burdened with extraordinary caseloads" as a result of the U.S. Senate's failure to fill the growing number of federal judicial vacancies.1 In 2008 and 2009, the Senate confirmed a mere 44 district court, 16 circuit court, and two Supreme Court nominees.2 While the statistics show that President Barack Obama was not particularly aggressive in selecting nominees, the larger, more persistent problem is that the Senate's confirmation process has become increasingly politicized and contentious. As of the date of Justice Roberts's 2010 report, a total of 94 judgeships were vacant due in large part to the Senate's refusal to vote on President Obama's nominees.3 Despite Justice Roberts's pleas for a solution, 2011 saw the Senate continue to drag its feet in filling vacancies, which continue to hover near 10 percent of the total number of seats on the federal bench.4 Moreover, less than one half of these vacancies have a nominee pending before the Senate, a fact that all but guarantees that the vacancies crisis within the federal judiciary is likely to continue into 2012 and beyond.5 As case fillings continue to increase at the district court level, where the majority of vacancies exist, an already overburdened judicial system stands to become even more stressed if the status quo continues.

Overall Vacancies

As shown in Table 1, the total number of federal judicial vacancies, as of the time of this writing, stands at 84 with 16 vacancies among the various courts of appeals, 66 vacancies within the district courts, and 2 vacancies within the U.S. Courts of International Trade. There are 37 nominees still pending final approval by the Senate.6 Table : Article III Judicial Vacancies

Court

Vacancies

Nominees Pending

U.S. Court of Appeals

16

7

U.S. District Courts

66

30

U.S. Courts of International Trade

2

0

TOTAL

84

37

Source: Administrative Office of the U.S. Courts7 On December 15, 2011, towards the end of the Senate's last session for the year, Senate Republicans, led by Minority Leader Mitch McConnell, refused to allow a vote on 21 judicial candidates. Even though all but two of the candidates had received bipartisan approval from the Senate Judiciary Committee, Senator McConnell refused to allow an up-or-down vote without an assurance from President Obama that he would not make any judicial or executive appointments during Congress's recess. In light of President Obama's recent decision to appoint Richard Cordray to run the Consumer Financial Protection Bureau during the recess, Senate Republicans are likely to remain uncooperative going forward.8 Consequently, the fate of these 21 consensus nominees, and any subsequent nominees to be recommended by the Judiciary Committee, remains in doubt.

Vacancies by Circuit

— District Court Vacancies Table 2 breaks the number of district court vacancies down by circuit. The Second, Third, and District of Columbia Circuits appear to be the hardest hit by the vacancies crisis, with vacancy rates ranging between 13 and 14.5 percent. Table : District Court Vacancies by Circuit

Circuit

Vacancies

Total # of Judgeships

Vacancy Percentage

First

3

29

10.34%

Second

9

62

14.52%

Third

8

61

13.11%

Fourth

4

55

7.27%

Fifth

7

82

8.54%

Sixth

5

62

8.06%

Seventh

4

47

8.51%

Eighth

4

41

9.76%

Ninth

13

109

11.93%

Tenth

4

37

10.81%

Eleventh

5

67

7.46%

D.C.

2

15

13.33%

TOTAL

68

667

10.30%

Source: Administrative Office of the U.S. Courts9 By any measure, the Second and Third Circuits are larger than average circuits. With 62 and 61 total judgeships respectively, both circuits exceed the average number of judgeships per circuit of approximately 55. Both also handle a high volume of cases relative to their sister circuits. In the 12 months ending March 31, 2011, district courts within the Second Circuit saw approximately 22,000 new civil case filings and 3,600 new criminal filings.10 In that same time period, district courts within the Third Circuit processed a staggering 68,000 new civil filings—approximately 58,300 alone in the Eastern District of Pennsylvania, where there are currently four district court vacancies—and an additional 2,450 new criminal filings.11 Despite the high number of vacancies, courts within the Second and Third Circuits have only four nominees pending Senate confirmation.12 Thus, even if all four of the nominees receive confirmation, both circuits will continue to be significantly strained for resources. With respect to district court vacancies generally, the fact that caseloads continue to increase promises to put further strain on the system. In 2011, as vacancies remained largely unfilled, the total case filings within the district courts increased by more than 2 percent.13 As a result, the average number of cases each judge must handle continues to increase. Table 3 shows the total actions per judge over the past five years. Table : Actions per Judgeship

&nbsp;

Total Actions Per Judge

Percentage Increase

Weighted Filings

Percentage Increase

2011

560

1.08%

505

4.12%

2010

554

9.70%

485

2.97%

2009

505

1.41%

471

-0.42%

2008

498

-3.30%

473

-1.05%

2007

515

8.88%

478

2.36%

Source: Administrative Office of the U.S. Courts14 After experiencing nearly a 10 percent increase in their caseloads in 2010 (as judicial vacancies peaked) district courts are not likely to take any solace in the fact that actions per judge increased only modestly (1.08 percent) in 2011. Moreover, "weighted filings," which take into account the different amounts of time district judges require to resolve various types of civil and criminal actions, continue to increase.15 Thus, district court judges continue to be burdened with larger and larger caseloads. — Circuit Court Vacancies In contrast to the district courts, circuit court filings actually decreased by 1.5 percent in 2011 to 55,126.16 Consequently, the circuit courts are not suffering additional strain due to an overall increase in cases. In fact, caseload metrics such as case terminations per active judge and written decisions per active judge remain virtually unchanged compared to 2010.17 Nevertheless, as shown in Table 4, the circuit courts are short a total of 16 judges. The Ninth Circuit has the highest number of vacancies with four. The D.C. Circuit has the highest vacancy rate with vacancies in three out of 11 authorized judgeships. Table : Circuit Court Vacancies by Circuit

Circuit

Vacancies

Total # of Judgeships

Vacancy Percentage

First

1

6

16.67%

Second

0

13

0.00%

Third

1

14

7.14%

Fourth

1

15

6.67%

Fifth

0

17

0.00%

Sixth

0

16

0.00%

Seventh

1

11

9.09%

Eighth

0

11

0.00%

Ninth

4

29

13.79%

Tenth

2

12

16.67%

Eleventh

2

12

16.67%

D.C.

3

11

27.27%

Federal

1

12

8.33%

TOTAL

16

179

9.41%

Source: Administrative Office of the U.S. Courts18 Judicial Emergencies Of the 84 federal court vacancies, 32 have been designated as "emergency vacancies" by the nonpartisan Administrative Office of the U.S. Courts. Table 5 shows the number of emergency vacancies by circuit. Table : Emergency Vacancies by Circuit

Circuit

Vacancies

First

0

Second

1

Third

2

Fourth

2

Fifth

5

Sixth

0

Seventh

4

Eighth

0

Ninth

11

Tenth

1

Eleventh

6

D.C.

0

U.S .Courts of Int'l Trade

0

TOTAL

32

Source: Administrative Office of the U.S. Courts19 The Administrative Office defines a district court vacancy as "emergency" if weighted filings in the district exceed 600 per judgeship or the vacancy has been in existence for more than 18 months and weighted filings are between 430 and 600 per judgeship.20 Similarly, a circuit court vacancy qualifies as an emergency if it is in a circuit where adjusted filings per panel exceed 700 or it has been in existence for more than 18 months in a circuit where adjusted filings are between 500 and 700.21 In other words, the 32 judgeships currently designated as "emergencies" either have been vacant for a long period of time, fall within a particularly busy district or circuit, or both. An analysis of the Administrative Office's most recent data shows that on average the 32 judgeships designated as emergencies have been vacant for approximately two years with weighted or adjusted filings of 625 and 823, respectively.22 In the Ninth Circuit, which finds itself burdened with more than one-third of the total emergency vacancies, the length of time the positions have remained vacant range from mere days to as much as six years.23 The emergency vacancy designation indicates positions where resources are particularly scarce. These are the courts that pose the greatest risk to the overall efficiency of the federal court system unless they receive additional staffing.

Comparison to Historical Vacancies

Table 6 shows the number of vacancies as a percentage of the total number of judgeships over the past decade. Table : Article III Judge Vacancies by Year

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